C(2016) 6494 final
Access Info Europe
Calle Cava de San Miguel 8, 4c
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2016/2791
Dear Mrs Darbishire,
I refer to your letter of 18 August 2016, registered on 25 August 2016, in which you
submit a confirmatory application in accordance with Article 7(2) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 ('Regulation 1049/2001').
SCOPE OF YOUR REQUEST
In your initial application of 19 May 2016, addressed to the Commission's Legal Service
(LS), you requested access to legal advice generated by and/or provided to the
Commission regarding the lobby register, including any and all legal advice that
considers the treaty basis for the register and whether or not it could be mandatory
The LS has identified the following documents as falling under the scope of your request:
Note of the Legal Service to the Secretary General of 12 September 2006
Note of the Legal Service to the Secretariat General of 17 September 2007
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
E-mail: [DG SG request email]
Note of the Legal Service to the Head of Cabinet of Vice-President Maroš
Šefcovič of 2 October 2013 (reference Ares(2013)3191712).
In its initial reply of 27 July 2016, the LS granted partial access to all of the above-
mentioned documents. The undisclosed parts were redacted on the exceptions provided
for in Article 4(2), second indent (protection of legal advice), Article 4(3), first
subparagraph (protection of the decision-making process) and Article 4(1)(b) (protection
of personal data) of Regulation 1049/2001.
Through your confirmatory application you request a review of this position and present
a series of arguments supporting your view. These will be addressed in the respective
parts of this decision.
I note that in your confirmatory application you explicitly point out that you do not wish
to receive access to the parts redacted on the basis of the exception provided for in
Article 4(1)(b) of Regulation 1049/2001. The scope of this confirmatory decision is
therefore limited to the parts of the documents to which access was refused at initial stage
based on the remaining two exceptions mentioned above.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I regret to inform you that I have to confirm the initial decision of
the LS not to grant full or further partial access to the documents requested, based on the
exceptions of Article 4(2), second indent (protection of legal advice) and Article 4(3),
first subparagraph (protection of decision-making process) of Regulation 1049/2001, for
the reasons set out below.
Protection of legal advice and of the decision-making process
Article 4(2), second indent of Regulation 1049/2001 provides that [t]he institutions shall
refuse access to a document where disclosure would undermine the protection of:
[…] court proceedings and legal advice
Article 4(3) of Regulation 1049/2001 provides that [a]ccess to a document, drawn up by
an institution for internal use or received by an institution, which relates to a matter
where the decision has not been taken by the institution, shall be refused if disclosure of
the document would seriously undermine the institution's decision-making process,
unless there is an overriding public interest in disclosure.
In your confirmatory application, you argue that [t]he Commission does not explain how
exactly disclosure of each of the
[undisclosed parts of the] documents could specifically
and effectively undermine the protection of legal advice.
This view is supported with a
detailed argumentation according to which the Commission did not provide a proper
statement of reason demonstrating a link between the public release of the documents
requested and the protection of the legal advice reflected therein.
You also consider that the link between the refusal to release of the undisclosed parts of
the documents and the underlying reasoning based on an alleged harm to the decision-
making process has not been established by the Commission in a sufficiently clear and
As you question the applicability of both exceptions based on a similar reasoning, I will
address these two exceptions together in this decision. Both exceptions apply to the
redacted parts of the documents.
Documents (1) and (2) were prepared by the Commission's Legal Service in the context
of the preparatory work relating to the adoption of the Commission's proposal for the
2011 Interinstitutional Agreement3, which in turn, led to the establishment of the
Transparency Register for organisations and self-employed individuals engaged in EU
policy-making and policy implementation. Document (3), as explained by the Legal
Service, was prepared following the request of the Cabinet of the Commission's Vice-
President in charge of inter-institutional relations for the revision of the Interinstitutional
Agreement in 20144. All three documents contain information constituting the
assessment of various legal aspects discussed in the early phase of the preparation of the
Agreement (documents (1) and (2)), or during the inter-institutional adoption process
Documents (1) and (3) contain considerations regarding the possibility of rendering the
common register of lobbyists mandatory and to a possible legal basis to that effect.
Document (2) examines the issue of the possible sanctions under the Code of Conduct5.
The information contained in documents (1) – (3) therefore constitutes legal advice
within the meaning of Article 4(2), second indent of Regulation 1049/2001.
These legal opinions are of particular sensitive nature. Firstly, Documents (1) and (3)
relate to the different options as to the legal basis for a mandatory register of lobbyists.
Document (3) is in addition a legal opinion of particularly wide scope as it gives a
detailed interpretation of Articles 298 and 352 of the TFEU. This advice is thus not only
relevant in the context of the current discussions on the lobby register but will be relevant
in the framework of future questions where the interpretation of the concerned Articles
may arise. The redacted parts of Document (2) relate to specific advice as to the attitude
3 European Parliament decision of 11 May 2011 on conclusion of an interinstitutional agreement
between the European Parliament and the Commission on a common Transparency Register.
4 Agreement of 19 September 2014 between the European Parliament and the European Commission on
the transparency register for organisations and self-employed individuals engaged in EU policy-
making and policy implementation, OJ L 277, 19.9.2014, p. 11–24.
5 Annex III to the Inter-institutional Agreement that establishes the standards of behaviour which must
be respected by all interest representatives in their relations with the EU institutions
of the Commission in case of non-compliance with the Code of Conduct and to specific
options for sanctions in such situation. These sensitive legal questions have to be
protected as the Commission has just launched a proposal for a new Interinstitutional
Agreement on a mandatory Transparency Register covering besides the European
Parliament and the Commission, the Council of the EU, to replace the 2014 version.
In spite of the fact that the decision-making process linked to the adoption of the follow-
up (2014) Interinstitutional agreement has been finalised, the information contained in
the undisclosed parts of documents (1) – (3) is thus still very relevant in the context of
the currently ongoing revision of the Interinstitutional agreement and the establishment
of a new version of the Transparency Register.
In particular, the undisclosed information included in partially released documents (1) –
(3) is still relevant for the purpose of the ongoing internal and further interinstitutional
discussions, especially considering that in the context of those discussions, the
Commission may be called upon, during or following that process, to review its proposal.
Documents (1) – (3), which were drafted for internal use, therefore contain information
relating to a matter for which a decision has not been yet taken, as the above-mentioned
revision process is still fully ongoing. As the Legal Service explained in its initial reply,
public disclosure of the redacted internal legal opinions reflected in documents (1) – (3),
before the three institutions have adopted the interinstitutional agreement, could be used
instrumentally by external parties trying to exert pressure on the decision and on the
negotiation process. It would also lead to erroneous and premature conclusions about the
Commission's rationale for opting for specific solutions in its proposal. That, in turn,
would compromise the Commission's interest in, and possibilities for, seeking and
receiving frank, objective and comprehensive legal advice. It would also have a negative
effect on the ongoing discussions regarding the Commission's proposal for the new
agreement, and on the Commission's margin of manoeuvre during these discussions.
Indeed, depending on the outcome of these negotiations, the Commission may be called
upon to revise its proposal. Releasing the internal legal opinions requested would
undermine the Commission's freedom to explore all possible options free from external
It needs to be emphasised that the revision of the Interinstitutional Agreement is
attracting a lot of attention of various actors representing opposing interests. Therefore, I
consider the risk of such external pressure as reasonably foreseeable and not purely
6 Judgment of 13 November 2015, in cases T-424/14 and T-425/14, ClientEarth v Commission
(ECLI:EU:T:2015:848), paragraphs 94-96.
Consequently, full public release of documents (1) – (3), would seriously undermine
these decision-making processes, as it would reveal preliminary legal assessments
relating to the policy options which are currently under consideration in the framework of
the ongoing inter-institutional discussions.
In light of the above, I consider that the use of the exception under Article 4(2), second
indent (protection of legal advice) and Article 4(3), first subparagraph of Regulation
1049/2001 (protection of the decision-making process) is justified, and that access to the
undisclosed parts of documents (1) – (3) must be refused on that basis.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2), second indent and Article 4(3), first
subparagraph of Regulation 1049/2001 must be waived if there is an overriding public
interest in disclosure. Such an interest must, firstly, be public and, secondly, outweigh the
harm caused by disclosure.
In your confirmatory application, you argue that such an overriding public interest exists
in this case and put forward a series of arguments in support of your view. These
arguments are concentrated around three issues. Firstly, you point out that full disclosure
of the documents requested would allow for a balanced and informed public debate to
facilitate better decision making
. Secondly, the release of the undisclosed parts of the
documents would help to obtain the best possible outcome in transparency register
Finally, public disclosure of documents (1) – (3) would be beneficial for ensuring accountability of EU Institutions and citizen participation.
I understand that certain entities and organisations (which are part of the public) might
have an interest in obtaining access to the documents in question. Nonetheless, I do not
consider that the public release of the internal documents in question would be the most
effective and appropriate way to achieve the results mentioned in your confirmatory
application. As already mentioned in part 2 of this decision, the Commission is very
much aware of the fact that reform of the Transparency Register is attracting a lot of
attention of various actors, stakeholders and citizens. To this end the Commission invited
the latter to have their say through the launch of a public consultation on the
Transparency Register and its revision, which was recently closed. The Commission has
received in this framework 1766 replies from stakeholders. The results were reflected in
a report, which is publicly available on the Transparency Register website, and the
Commission takes into account these results when drafting its proposal for a new
Interinstitutional Agreement. The Commission has therefore put in place all necessary
mechanisms in order to ensure full accountability, a balanced debate and citizen
It is not clear how releasing documents of a purely internal nature would add to that
transparency. As emphasised above, the review process is at a very early stage, and the
Commission is dedicated to continuing keeping that debate free from undue external
pressure in order to achieve the best outcome.
Having regard to the above, I consider that at this stage, any possible public interest in
transparency cannot outweigh the public interest in safeguarding the legal advice and the
decision-making process protected, respectively, by the second indent of Article 4(2) and
Article 4(3) of Regulation 1049/2001.
Nor have I been able to identify any other public interest capable of overriding the public
and private interests protected by Article 4(2), second indent and Article 4(3), first
subparagraph of Regulation 1049/2001.
In accordance with Article 4(6) of Regulation 1049/2001, I have considered the
possibility of granting (further) partial access to the documents requested. However, for
the reasons explained above, no further partial access is possible without undermining the
interests described above.
In your confirmatory application you contest this by arguing that the Commission has
failed to indicate whether all the exceptions apply to all redacted text of all the
documents, or whether there are parts which, for example, fall under only the decision-
making exception and not that for protection of legal advice.
As explained above, the entirety of the information7 included in documents (1) – (3)
constitutes legal advice within the meaning of Article 4(2), second indent of Regulation
1049/2001 and would put at risk the current decision making process of the institution if
disclosed. Having examined these documents, I have come to the conclusion that no
further partial access is possible to the undisclosed parts without undermining the
interests referred to above. Consequently, access thereto is refused on the basis of the
exceptions referred to above.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
PARTS OF YOUR APPLICATION FALLING OUTSIDE THE SCOPE OF REGULATION
In your confirmatory application you point out that the initial reply was provided by the
LS with a significant delay. To this end, you request the Secretariat-General to address
the question what the Commission is doing to solve the problem of serious delays in
responding to requests.
7 Other than personal data, to which refusal of access was not contested in your confirmatory
I certainly regret that the initial reply was not provided to you within the deadlines of
Regulation 1049/2001 and can assure you that the Secretariat-General consistently
endeavours to ensure the best possible application of Regulation 1049/2001 by all
For the Commission